Water Law
Authors:
Craig, Robin Kundis / Adler, Robert W. / Hall, Noah D.
Edition:
1st
Copyright Date:
2017
17 chapters
have results for admiralty or maritime
Chapter 6. Navigable Waters 29 results (showing 5 best matches)
- Article III, section 2 of the U.S. Constitution includes within federal judicial power “all Cases of admiralty and maritime jurisdiction.” In general, admiralty and maritime law applies to ships and sailors on the navigable waters, and there is a strong goal of achieving national uniformity in these rules, which include the rules of tort liability. Thus, what counts as “navigable waters” for admiralty jurisdiction and maritime law is critical to national-level policies.
- Indeed, admiralty jurisdiction played a seminal role in defining “navigability” in early federal law. When the admiralty clause of the Constitution was adopted, admiralty jurisdiction in England was limited to cases involving waters influenced by the ebb and flow of the tide and cases that were not within the jurisdiction of inland counties. Early American admiralty cases similarly limited admiralty jurisdiction to coastal and tidal waters, in part to preserve the power of state courts relative to federal courts. the U.S. Supreme Court began to expand admiralty jurisdiction in the United States, reasoning that nothing in the Constitution limited admiralty jurisdiction to the scope existing in England at the time and that U.S. law should be free to evolve as was appropriate to the conditions of a new nation on a different continent. That reasoning opened the door to the more significant expansion of admiralty jurisdiction in
- involved a collision of two boats on Lake Ontario, and the issue before the U.S. Supreme Court was whether the Court had admiralty jurisdiction. Prior to this case, admiralty jurisdiction only applied to waters subject to the ebb and flow of the tide. eliminated this requirement because, unlike England, the United States has many large inland navigable waterways. Chief Justice Taney stated that admiralty jurisdiction applies to all navigable waters, defined as the public waters upon which interstate or international commerce is conducted.
- 1. Federal Admiralty Jurisdiction
- The words “navigable” and “navigability” appear nowhere in the text of the U.S. Constitution. However, the concept of navigability has been important to the scope of federal constitutional authority since the early days of the Republic. Specifically, judicial decisions have used navigability to define the scope of Article III admiralty jurisdiction and of federal power under the Commerce Clause and the related federal navigational servitude.
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Chapter 7. State Public Trust Doctrines 26 results (showing 5 best matches)
- As Chapter 6 discussed, a waterway’s status as a navigable water is important for at least two reasons. First, waterbodies that meet various federal-law definitions of navigability are subject to federal regulatory jurisdiction under the Commerce Clause, the federal courts’ admiralty jurisdiction and application of federal maritime law, and the federal navigation servitude. Second, if a waterbody meets the federal-law test for state title navigability (natural navigability in fact at the date of statehood), the state will own the waterbody’s bed and banks. Both aspects of navigability can create public rights in those waterways.
- [t]he public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this country … the public trust doctrine remains a matter of state law, subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power…. Under accepted principles of federalism,
- any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound, estuary, inlet, strait, passage, canal, sea or ocean, or any other body of water or waterway within the territorial limits of the state or subject to its jurisdiction, that is navigable in fact for any useful public purpose, including but not limited to
- “that every constitutional amendment or law proposed by initiative … be limited to a single subject, which shall be clearly expressed in its title.” A proposed initiative violates this rule if its text “relate[s] to more than one subject, and [has] at least two distinct and separate purposes not dependent upon or connected with each other.” As such, the subject matter of an initiative must be “necessarily and properly connected” rather than “disconnected or incongruous.”
- For example, Oregon’s public trust responsibilities have been applied to fishing regulation. As a result, statutes purporting to convey exclusive rights to fish in navigable waters violated the Privileges and Immunities Clause in the Oregon Constitution. Hume v. Rogue River Packing Co., 92 P. 1065, 1072–73 (Or. 1907); Johnson v. Hoy, 47 P.2d 252, 252 (Or. 1935) (holding that the Legislature cannot grant an exclusive right to fish for salmon). Nevertheless, because the state has jurisdiction over navigable waters, it can regulate fishing. Oregon v. Nielsen, 95 P. 720, 722 (Or. 1908); Antony v. Veatch, 220 P.2d 493, 498–99 (Or. 1950). Specifically, fishing methods can be enjoined if they interfere with the public’s common right of fishing. Radich v. Frederckson, 10 P.2d 352, 355 (Or. 1932); Johnson, 47 P.2d at 252.
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Table of Contents 6 results (showing 5 best matches)
Chapter 14. Public Interests, Private Rights in Water, and Constitutional Takings Claims 38 results (showing 5 best matches)
- Takings claims in the federal courts require litigants to sue in the United States Court of Federal Claims instead of the normal federal district courts. Congress created this court in 1855, when it was known as the U.S. Court of Claims. In 1887, Congress enacted the Tucker Act, which gave this court jurisdiction over all claims against the federal government except tort, equitable, and admiralty claims. Under current statutes:
- The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
- Throughout this book, you have seen moments when private water rights, water use, or water management conflict with public needs or desires or ecological requirements for the same water. This chapter examines the private water right holder’s classic legal response—to sue for an unconstitutional taking of private property.
- County’s action with respect to Allegretti in the present case—imposition of a permit condition limiting the total quantity of groundwater available for Allegretti’s use—cannot be characterized as or analogized to the kinds of permanent physical occupancies or invasions sufficient to constitute a categorical physical taking. The County did not physically encroach on Allegretti’s property or aquifer and did not require or authorize any encroachment (e.g. Yee v. City of Escondido, supra, 503 U.S. 519, 527, 112 S.Ct. 1522); it did not appropriate, impound or divert any water. The County’s permit decision does not effect a
- The U.S. Supreme Court recognizes three categories of takings. First, the government can physically take private property by actually occupying that property or by forcing the private landowner to endure some physical invasion by the government or by the general public—for example, the condemnation of private land for a public road or a government building. According to the U.S. Supreme Court, “When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.”
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Chapter 10. The Water-Energy Nexus 21 results (showing 5 best matches)
- Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, use, or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.
- To issue licenses to citizens of the United States, or to any association of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality
- those parts of streams or other bodies of water over which Congress has jurisdiction under its authority to regulate commerce with foreign nations and among the several States, and which either in their natural or improved condition notwithstanding interruptions between the navigable parts of such streams or waters by falls, shallows, or rapids compelling land carriage, are used or suitable for use for the transportation of persons or property in interstate or foreign commerce, including therein all such interrupting falls, shallows, or rapids, together with such other parts of streams as shall have been authorized by Congress for improvement by the United States or shall have been recommended to Congress for such improvement after investigation under its authority ….
- Tables 10–1 and 10–2 reveal that most forms of electricity generation—conventional or renewable—will need water rights. Thermoelectric power plants and most forms of renewable energy facilities get their water through the standard water rights law and processes of the states in which they sit. Because most of the water withdrawals for power plants come from surface water, this fact means that power plants in the East generally rely on riparian rights or regulated riparianism permits for their water rights, while power plants in the West obtain water rights through prior appropriation permits or, in Colorado, water court decrees.
- The effect of § 27, in protecting state laws from supersedure, is limited to laws as to the control, appropriation, use or distribution of water in irrigation or for municipal or other uses of the same nature. It therefore has primary, if not exclusive, reference to such proprietary rights. The phrase “any vested right acquired therein” further emphasizes the application of the section to property rights. There is nothing in the paragraph to suggest a broader scope unless it be the words “other uses.” Those words, however, are confined to rights of the same nature as those relating to the use of water in irrigation or for municipal purposes.
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Chapter 5. Moving from the Common Law to Permits 61 results (showing 5 best matches)
- any and all water on or beneath the surface of the ground or in the atmosphere, including natural or artificial watercourses, lakes, ponds, or diffused surface water and water percolating, standing, or flowing beneath the surface of the ground, as well as all coastal waters within the jurisdiction of the state.
- may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, the department of ecology shall, when requested by the department of fish and wildlife to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if the department of ecology finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination.
- By the time most states got around to creating permit systems, people within that state or its predecessor colony or territory had been creating and exercising water rights under the common law. Thus, state legislatures faced the issue of what to do about those pre-existing rights: Should they be destroyed, or would the state continue to recognize them as valid under the new permit system?
- § 90.03.010 (“Nothing contained in this chapter shall be construed to lessen, enlarge, or modify the existing rights of any riparian owner, or any existing right acquired by appropriation, or otherwise.”).
- to sort out common-law prior appropriation rights for surface water and, increasingly, for groundwater as well. In a stream adjudication, the state or (sometimes) an individual water claimant uses special processes (defined in the state water law statutes or water code) to join all of the people who claim a right to water from a particular water resource or system into a single court proceeding. The judge then evaluates the validity, quantity, and priority of all of the prior appropriative rights for that resource or system. (If you remember your Civil Procedure, general stream adjudications are essentially the water law version of interpleader—everyone with a claim to the same river or linked water resources is joined in the same legal proceeding, where they and the court hash out everyone’s relative rights to the water.) Assuming that the proceeding meets the due process requirements of notice and an opportunity to participate, all claimants existing at the time of the proceeding...
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Chapter 3. Dealing with Western Water Realities: The Creation and Adoption of Prior Appropriation 50 results (showing 5 best matches)
- Prior appropriation doctrine also tries to make water use more efficient through the “use it or lose it” principle. This aspect of prior appropriation law is designed to make sure that water rights are actually put to beneficial use rather than being held for speculation or in other ways that improperly prevent other people from using the water. States effectuate the “use it or lose it” concept, at least in theory, through either the common-law doctrine of abandonment or statutory forfeiture, or both, depending on the state. Both doctrines provide that if a right holder does not use the water for the intended beneficial use for a prescribed period of time, the water reverts to the state or the public (whichever state law deems to be the actual “owner” of water), allowing other would-be users to appropriate it. However, a right holder can only abandon or forfeit a water right if the water is actually available. For example, if a drought is so severe that juniors are curtailed, they...or
- One of the very few limits on seniority rights is the “futile call doctrine,” in which a junior can avoid a curtailment of its water right if he or she can show that the withheld water would not be available to the senior anyway. In a classic example of a futile call, the junior is located upstream of the senior and hydrological or other physical factors (such as evaporation or infiltration into permeable soils) would prevent any water from reaching the senior regardless of the junior uses of that water. Other limits on the seniority doctrine, discussed further below, arise when the junior user can demonstrate that the senior is “wasting” water or has abandoned or forfeited all or part of its water right through nonuse.
- All of those factors, in various ways, suggested to early western settlers that attributes of the system of riparian rights applicable in the eastern states might be less appropriate in the West. Restricting the right to use water to riparian landowners, for example, would exclude large swaths of arable land and other economically valuable uses from water rights. It could also grant valuable water monopolies to a small group of landowners. The strict version of riparian rights, in which water could not be substantially diminished in quantity or quality, would discourage or prevent the irrigation essential to growing food and other crops in an arid region. It would also impede or prevent significant diversion of water to lands and uses distant from the source, or storage of water when runoff was available for times when it was not. Finally, when scarcity rather than surplus was the stark reality, the lack of certainty inherent in riparian law, in which new riparian users might...
- Forfeiture is a statutory analog to abandonment, adopted by most western state legislatures because of the uncertainty and difficulty inherent in abandonment doctrine. Indeed, many states have replaced the common-law doctrine entirely with statutory forfeiture. Statutory forfeiture provisions are more objective and more easily proven because they eliminate the intent requirement. Rather, if some or all of the water defined in a water right is not put to beneficial use continuously for a prescribed statutory period (often seven years), it is subject to automatic forfeiture. Several factors, however, also have limited the utility of statutory forfeiture. Long periods of nonuse can still be difficult to prove, particularly in remote regions or where the actual use is not subject to rigorous reporting or obvious physical manifestations. Some forfeiture provisions require action by a state official or agency, and such officials and agencies are often reluctant to terminate citizens’...
- Second, existing users may or may not use all of their appropriations in any given year, depending on weather and other conditions. For example, if stored soil moisture or precipitation is high in a given year, or if temperature (and resulting evapotranspiration) is unusually low, irrigators may not need to apply their full appropriation to successfully grow crops in that year. Under the abandonment and forfeiture doctrines, failure to use all of the appropriated water in any single year does not result in a loss of the water right, again making that water available for use in those years by other potential appropriators.
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Chapter 9. Interstate Water Pollution, Apportionment and Management 22 results (showing 5 best matches)
- The Master also concluded that “the taking of 600 millions of gallons daily from the tributaries will not materially affect the River or its sanitary condition, or as a source of municipal water supply, or for industrial uses, or for agriculture, or for the fisheries for shad.”
- Western water compacts, such as the Colorado River Compact and the Rio Grande Compact, focus on apportioning water from a shared river or lake among the party states. However, while western compacts thus limit the total amount of water that each individual state may take from a shared resource, they usually do not provide any standards or even guidance for managing individual water withdrawals within any particular state’s total allocation. They also often do not address increasingly important issues such as how states should adjust their water allocations in response to drought, population growth, or a changing climate.
- Just as pollution of shared interstate water bodies gave rise to disputes warranting the U.S. Supreme Court’s jurisdiction and resolution, the diversion of water out of a shared water body presented the Court with interstate disputes beginning in the early 20th century and continuing to the present. Doctrinally, the interstate disputes over water allocation and diversion are a close cousin of interstate water pollution disputes. Both involve the effects of activities in one state (discharging pollutants into or withdrawing water from a stream or lake, respectively) on the use of the water resource in the downstream state. Both involve the competing interests of one state’s sovereign control over its economic activities
- Colorado has not committed itself to any long-term use for which future benefits can be studied and predicted. Nor has Colorado specified how long the interim agricultural use might or might not last. All Colorado has established is that a steel corporation wants to take water for some unidentified use in the future.
- Interstate compacts are powerful legal tools. A compact is essentially a contract between states, subject to federal legislative approval, whereupon the compact also takes on the status of federal law. The compact mechanism is provided in Article I, Section 10, Clause 3 of the U.S. Constitution, which declares that “[n]o State shall, without the Consent of Congress … enter into any Agreement or Compact with another State, or with a foreign Power.” While this clause is phrased in the negative, it implies—and has been held to mean—that states are free to enter into compacts with each other, so long as Congress approves.
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Chapter 12. Human Use of Water and Endangered Species 51 results (showing 5 best matches)
- . Section 7(a)(2) prohibits federal agencies from engaging in activities, funding actions, or permitting private actions that are “likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the [relevant expert agency] to be critical ….” Under the U.S. Fish & Wildlife Service’s and NMFS’s joint ESA regulations, “jeopardize the continued existence of” “means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” In turn, “destruction or adverse modification” of critical habitat “means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but...
- “Harm,” in turn, “means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
- “Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structures of plants which may yet be undiscovered, much less analyzed? … Sheer self-interest impels us to be cautious.
- (A) the present or threatened destruction, modification, or curtailment of its habitat or range;
- In formal consultation, the action agency first assesses whether its proposed action is likely to jeopardize a listed species or damage or destroy its critical habitat. The document that the action agency produces is called a , or , or . The Biological Opinion might conclude that no jeopardy, damage, or destruction is likely, in which case the action agency can proceed with confidence that its proposed action will not violate Section 7(a)(2). In such a case, moreover, the expert agency might also provide the action agency with an
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Chapter 2. Riparian Law 36 results (showing 5 best matches)
- Most states now have permitting requirements for private docks. The permitting authority—the DNR in Wisconsin—usually tries to ensure that dock builders are not interfering with their neighbors, intruding on their neighbors’ property or riparian zones, overburdening the waterbody (such as with huge structures that give multiple non-riparians access to the water), or interfering with navigation or other public uses. The permitting authority generally also has to be conscious of environmental impacts, whether through the permitting statute itself or the state’s more general environmental impact analysis requirements, or both.
- Riparians possess the right to access the water for a variety of further uses, such as recreation, boating, or fishing. Pursuant to this right, riparians can seek to enjoin, or receive compensation for, any activity or action that frustrates or impedes their access to the water.
- However, while riparian landowners are more or less stuck with changes in waterbodies, causing unwanted accretion or erosion to another’s land is actionable as a tort. Usually, a riparian cannot deliberately increase the size of his or her own property through artificial accretion or reliction. However, a riparian usually receives the benefit of artificial accretion or erosion resulting from a third party’s activities,
- Courts in England and America resolved early disputes between riparians using the natural flow doctrine. Under this system, each riparian owner was entitled to have the waterbody preserved in its natural state, not noticeably diminished in quantity or impaired in quality. Uses of the water that altered the water level or water quality could be enjoined.
- (d) When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each.
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Chapter 11. The Intersection of Water Law and Water Pollution Control Law 53 results (showing 5 best matches)
- For one thing, water quality and water quantity are often integrally related from a practical perspective. Having an adequate water supply might be meaningless if the water is too contaminated to use or if the treatment necessary to make it usable is so costly that the intended use is no longer economically viable. Conversely, water withdrawals can make it difficult or impossible to achieve water quality goals if the reduced water flows concentrate pollutants or if elevated water temperatures or other physical changes cause significant impairment to the ecosystem. Dams, diversions, or other infrastructure built to implement a system of water allocation also might cause pollution or other forms of harm to aquatic ecosystems—for example, by blocking fish passage, altering natural stream flow patterns, or changing water quality or temperature. For all of those reasons, in a seminal case addressing the authority of a state to impose minimum flow requirements on a hydroelectric project...
- First, the concept of water “pollution” articulated in the CWA is far broader than just the discharge of chemical wastes from factories or human wastes from sewage treatment plants. The overall objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The Act defines the term “pollution” to be “the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water,” The term “pollution,” therefore, might include activities with significant linkages to water quantity law, such as water withdrawals and conveyances; dams, diversions, or other water resources infrastructure; or stream channelization and stabilization designed to prevent or mitigate flooding. In other words, actions taken to implement the systems of water law covered in earlier chapters have significant potential to alter the chemical, physical, biological or radiological integrity of water, causing pollution...
- One of the factors common-law courts have used in determining whether water pollution unlawfully violates the rights of another user is that dischargers should be held to some standard of technological sufficiency in their conduct. In other words, in determining whether the challenged pollution is “unreasonable” relative to the competing rights of other parties, courts will inquire whether the operation is being conducted in accordance with some reasonable standard of care or practice common to similarly situated businesses or activities. This inquiry is similar to the “ordinary standard of care in the community” analysis that courts have used to determine whether an appropriator is guilty of waste in the prior appropriation system. Courts also may ask whether economically viable superior technology or methods exist to control the pollution to guard against the possibility that all existing operators are uniformly using (usually because it is cheaper) inadequate control technology
- [c]larify that water transfers are not subject to regulation under the National Pollutant Discharge Elimination System (NPDES) permitting program. Th[e] rule defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.
- . § 45–153.A (authorizing denial of appropriative right “when the application or proposed use conflicts with vested rights, is a menace to public safety, or is against the interests and welfare of the public”).
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Chapter 8. Federal Water Interests 27 results (showing 5 best matches)
- Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other sources, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit.
- Some federal agency actions related to water will clearly “significantly affect[ ] the quality of the human environment” and hence require an EIS. For example, if the Army Corps, TVA, or Bureau of Reclamation is building a build new dam with a substantial reservoir, there is no question that it will have to prepare a full EIS.
- Neither country may use or divert boundary waters “affecting the natural level or flow of boundary waters on the other side of the [border]” without the authority of the International Joint Commission, forbids pollution “on either side to the injury of health or property on the other.”
- If principles of either pure common-law riparianism or common-law prior appropriation applied, the white settlers would have probably have won. Instead, the U.S. Supreme Court found for the Tribes and the United States, concluding that the United States
- ...without a change of conditions. The lands were arid, and, without irrigation, were practically valueless. And yet, it is contended, the means of irrigation were deliberately given up by the Indians and deliberately accepted by the government. The lands ceded were, it is true, also arid; and some argument may be urged, and is urged, that with their cession there was the cession of the waters, without which they would be valueless, and ‘civilized communities could not be established thereon.’ And this, it is further contended, the Indians knew, and yet made no reservation of the waters. We realize that there is a conflict of implications, but that which makes for the retention of the waters is of greater force than that which makes for their cession. The Indians had command of the lands and the waters,—command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this?...
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Chapter 4. Allocating Groundwater: The Five Groundwater Doctrines Used in the United States 30 results (showing 5 best matches)
- However, as groundwater use increases—especially with the aid of more powerful pumps and deeper wells and in response to increasing population or other pressures—aquifers can become depleted. Despite the fact that aquifers sometimes hold very large reserves of fresh water, they are subject to depletion like any other resource, especially when their recharge rates are very slow. Aquifer depletion leads to conflicts among groundwater users and sometimes between groundwater and surface water users. Any groundwater pumping, but particularly large-scale extraction with powerful mechanical pumps, lowers the water table in a cone-shaped depression radiating in a circle away from the well, with the level of impact diminishing with increasing distance from the well. For example, assume one user has an established well, Well B. A second user then drills Well A nearby. If Well A lowers the water table below the level of Well B, it will limit or prevent operation of that well, causing a legal...or
- because relatively impermeable layers of material (such as low porosity rock or clay) above or around the aquifer restrict or prevent groundwater movement, while others are
- On the other hand, groundwater use also poses several challenges that suggest legal issues. For some individual landowners, the infrastructure costs for well drilling and pumping can be significant, especially when competition between neighboring users requires deeper and deeper wells. Such competition and excessive pumping can result not only in increasing costs, but also aquifer depletion, saltwater intrusion in coastal areas, land subsidence, and other problems. In some regions, groundwater has water quality problems as a result either of heavy natural salt or mineral content (high total dissolved solids (TDS)) or because of groundwater pollution from industrial, agricultural, or other chemical use and disposal. Moreover, the hydrological connections between surface water and groundwater mean that extraction from one source might affect the other for legal as well as physical purposes.
- , or loss without legal harm, and therefore gave rise to no legal cause of action. Given the almost complete scientific uncertainty about groundwater at the time, competing groundwater users had no clear way to know what portion of the water came from beneath their land or was drawn from beneath other properties, or what the impact of that pumping might be on neighboring landowners. Another rationale given for the doctrine is that it allows landowners to develop their property fully, thus promoting economic development. The doctrine does not limit the place of use, however, meaning that the landowner may use groundwater taken from beneath his or her land anywhere and for any purpose, subject only to the narrow limits discussed below.
- A second way to conceptualize the rule of capture is as a doctrine of tort non-liability. One well driller may harm another party by pumping groundwater from beneath his or her property, but the principle of indicates that harm does not translate to legal liability. Of course, the same is true in the opposite direction, which means that a well owner who causes another owner’s well to dry up may be subject to reciprocal harm if that party then drills a deeper well or installs a more powerful pump. Moreover, there are exceptions to the doctrine of non-liability for malicious pumping for the sole purpose of causing harm, for the wanton and willful waste of water, or for negligence that proximately causes subsidence of another’s land.
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Chapter 13. Comprehensive Water Resources Management and Watershed Planning 31 results (showing 5 best matches)
- Given the public nature and public ownership or control of water, however, one might ask why anyone should have to pay for, or otherwise secure, a private property right for public instream uses and values. If protection of instream flows is designed to protect particular private interests, such as a sufficient flow rate to support a guided kayaking business, it makes sense that private parties should have to secure a private right for that flow. Of course, other users who benefit from that flow will be “free riders” (in this case, perhaps both literally and figuratively) on the private water right. However, if an instream flow right is designed to protect a purely public good, such as an endangered species or public recreation, it is less likely that private parties will devote private financial or other resources to secure that right. Likewise, it makes less sense to require a special “right” to protect what should logically be part of the baseline public ownership and control of...
- Regardless of program size and focus, one common component of watershed programs is integration of multiple factors rather than more discrete decisions about individual legal or other issues and disputes. Such programs ensure that all of the legal, scientific, political or governance, and other factors that affect particular water resource decisions are considered in tandem rather than in isolation. They adopt a process in which all affected stakeholders have a robust opportunity for input, although the exact roles of different stakeholders vary depending on program design and philosophy, or, in some cases, on the legal parameters established for the program by legislative or other sources.
- to loosely describe the kind of iterative process discussed above, in a stricter scientific sense it has a more precise meaning. Adaptive management uses a “learning by doing” approach similar to an iterative watershed or other ecosystem management program. It does so, however, through a series of intentionally designed experiments using the ecosystem—in our case aquatic ecosystem of watershed—being managed or restored. Aquatic and other ecosystems are so complex, and affected by so many variables, that it is often difficult to know in advance of a particular management action what the effects will be on an ecosystem. To test that response, adaptive managers design a considered experiment in which they take a particular action, develop a hypothesis about the expected response, and monitor the results scientifically to determine the extent to which the hypothesis was correct. If the outcome moves the system toward established program goals, that set of management actions can be...
- Some CWA programs and provisions are also designed specifically to integrate various components of water pollution control and other aspects of aquatic ecosystem restoration and protection within watersheds. Some provisions orchestrate or fund programs designed to implement comprehensive, water body-specific aquatic ecosystem restoration and management programs of the kind discussed later in this chapter. or that provide for comprehensive planning programs that encourage or require water pollution control agencies and officials to address water pollution in a more integrated way.
- but in other cases municipal water supply needs or other realities of the modern economy require those uses to give way to water development even in the comparatively wetter eastern states. Conceptually, there is no reason why the reasonable use doctrine of riparian rights, or its statutory or administrative versions, cannot accommodate reasonable uses while protecting instream flows and aquatic ecosystem uses and values. Instream uses are simply one factor to balance in the process, and it is predictable that some decisions will favor human off stream use while others may be more protective of instream flows as judges and administrators strike those difficult
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Chapter 1. Introduction to Water Law 8 results (showing 5 best matches)
- describes the interconnected movement of all water on Earth. The major transfers of water occur between water in the atmosphere, surface water, and groundwater. As water vapor in the air condensates and falls as precipitation, water is widely distributed. Precipitation that collects in mountains can reach surface water by traveling through streamflow or as surface or snowmelt runoff. Water that infiltrates the ground will either become stored as groundwater or be absorbed by plants, or in some cases seep into surface water from springs. (For a detailed examination of the Although some water moves through this cycle relatively quickly, much of the globe’s water is stored for longer periods of time in glaciers and polar icecaps and in deep or geologically isolated aquifers.
- Industrial water use includes water used for such purposes as fabricating, processing, washing, diluting, cooling, or transporting a product; incorporating water into a product; or for sanitation needs within the manufacturing facility. Industrial water withdrawals accounted for about 4 percent of total withdrawals in 2005.
- In addition, the EPA has concluded that 42 percent of the nation’s streams are in poor biological condition, 25 percent in fair condition, and 28 percent in good biological condition (with 5 percent not assessed). The most significant causes of impairment are nutrients, riparian disturbance, streambed sediments, and loss or alteration of in-stream fish habitat and riparian vegetation.
- Irrigation water use includes water that is applied by an irrigation system to plants in agricultural and horticultural operations. As of 2005, total irrigation withdrawals were about 128,000 million gallons per day, or 144 million acre-feet per year, in
- Public supply refers to water withdrawn by public and private water suppliers that provide water to at least 25 people or have a minimum of 15 connections. An estimated 258 million people—about 86 percent of the total U.S. population—rely on public water supplies for their household use. Not surprisingly, states with the largest populations (California, Texas, New York, and Florida) withdraw the largest amounts of water for public supply. Two-thirds of the water withdrawn for public supply in 2005 came from surface sources, such as lakes and streams; the other third came from groundwater. Of the total public-supply water, most is delivered to customers for domestic, commercial, and industrial needs. Part of the total, often unbilled, is used for public services, such as pools, parks, firefighting, water and wastewater treatment, and municipal buildings.
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- Publication Date: January 20th, 2017
- ISBN: 9781634603133
- Subject: Water Rights
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: Intended for a general audience, Water Law: Concepts & Insights provides both a general overview of basic water law doctrines and an exploration of how water law—the law and policies governing allocation of water—fit into broader ecological and environmental law issues. The book provides an overview of important hydrological principles before discussing the two state-law systems governing use of surface water in the United States and the five doctrines governing use of groundwater. It then explores the federal government's interests in the fresh waters of the United States, ranging from protection of navigability to federal water projects to federal water rights. Putting the law governing water use into a broader context, Water Law: Concepts & Insights then explores the intersections of state water law with energy policy and production, water quality protections, endangered species protections, and broader watershed management. It ends by returning to the concept of water rights as protected private property rights and the complexities of constitutional "takings" litigation when environmental protections interfere with those rights.